F.U. right wingers. NSA eavesdropping program ruled unconstitutional

[Ogie Oglethorpe]

Originally posted by Oerdin
And then there is the fact that Congress never actually declared war which is how Abe got his war time powers.

So then consider Truman instead.

[Dinner]

Which part? That part where Truman was leading the nation in WW2 or afterwards?

[Imran Siddiqui]

Originally posted by DinoDoc
I'm just curious how the plaintiffs got standing considering the fact that AFAIK they never demonstrated an actual injury.

There are a number of cases in which actual injury (in the sense you are thinking) is not strictly required for standing due to certain facts which would make it too onerous a burden. The clearest case on this is Roe v. Wade, where some were arguing the case was moot, Roe had her kid.. it takes more than 9 months to get to the Supreme Court. The Supreme Court said that she had standing because this was an injury that would happen over and over again and the court system moves too slowly to deal with the issue, which is, after all, constricted by 9 months (more or less).

In this case, I'd imagine it'd be very hard to prove you were wiretapped by the NSA to demonstrate actual injury. A 'chilling effect' is sufficient and has been used in the past in certain unusual cases.

Basically, don't expect a court to rule that the plaintiffs don't have standing.

[Geronimo]

Originally posted by Oerdin
Which part? That part where Truman was leading the nation in WW2 or afterwards?

Korea?

[Ogie Oglethorpe]

My bad. Truman did his nastiness in peace time not war time. Same for FDR. The point being both of these icons of the Democratic party felt they had consitutional authority and snubbed their noses at congressional whinings tothe contrary. Whats more they didn't even have to invoke war time powers to do so. (That actually makes the arguement all the more convincing that presidents in times past had greater given authority and that Bush is not making a naked power grab, if anything one could argue congress has**)

First FDR circa 1940. Interestingly the role Jackson (of later three part test fame) played in supporting the Presidential decision once the President wieghed in.

FDR's Domestic Surveillance
By Adam White & Daveed Gartenstein-Ross
Published 5/9/2006 12:08:25 AM

IN A BOLD AND CONTROVERSIAL DECISION, the president authorized a program for the surveillance of communications within the United States, seeking to prevent acts of domestic sabotage and espionage. In so doing, he ignored a statute that possibly forbade such activity, even though high-profile federal judges had affirmed the statute's validity. The president sought statutory amendments allowing this surveillance but, when no such legislation was forthcoming, he continued the program nonetheless. And when Congress demanded that he disclose details of the surveillance program, the attorney general said, in no uncertain terms, that it would get nothing of the sort.

In short, President Franklin Delano Roosevelt charted a bold course in defending the nation's security in 1940, when he did all of these things.

It is worth remembering FDR's example as the debate over the NSA's warrantless surveillance continues to heat up. After a few months' lull, it seems that the issue is again creeping into the headlines. On April 27, for example, Senate Judiciary Committee Chairman Arlen Specter convened a press conference demanding that President Bush disclose the details of the NSA's surveillance program, and threatening to suspend the program's funding.

As with so many issues central to the global war on terror in which the need for security must be balanced against individual liberties, there is no fool-proof answer to the questions raised by the NSA's surveillance program. Yet broad sections of the left have personalized this debate around President Bush. Their hatred and distrust of Bush drives them to see the administration's actions in the worst light possible. To that extent, it's important to understand how President Roosevelt -- a paragon of the left -- dealt with similar problems.


PRESIDENT BUSH FACES CHALLENGES on two fronts. First, it's been argued that there is no authority for the NSA surveillance, either statutory or constitutional. Second, congressional critics demand that the administration disclose the details of the surveillance program. The Roosevelt administration faced similar challenges in the days leading up to World War II. Documents that we obtained from Justice Robert Jackson's archives at the Library of Congress, some of which have never before been discussed in the press, show that President Roosevelt did not doubt his authority to conduct such surveillance in the interest of national security.

In 1937 and 1939, the Supreme Court handed down a pair of decisions in the matter of Nardone v. United States. The Court held that the Communications Act of 1934 barred federal surveillance of telephone lines, and that evidence obtained from such surveillance couldn't be introduced at trial.

In response, Attorney General (and future Supreme Court justice) Robert Jackson ended the FBI's longstanding surveillance of suspected saboteurs and spies. FBI director J. Edgar Hoover protested this decision. In an April 13, 1940 memorandum to Jackson, Hoover outlined a number of pending investigations that were hampered by Jackson's decision. Hoover concluded, "Frankly, the Bureau cannot cope with this problem without the use of wire taps and I feel obligated to bring this situation to your attention at the present time rather than to wait until a national catastrophe focuses the spotlight of public indignation upon the Department because of its failure to prevent a serious occurrence."

President Roosevelt sided with Hoover, not Jackson. In a signed May 21, 1940 memorandum to his attorney general, FDR wrote:

I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.

However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.

It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called "fifth columns" in other countries and in preparation for sabotage, as well as in actual sabotage.

It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed.

You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.


FDR's assertion that the Supreme Court didn't read the Communications Act to bar surveillance for national defense wasn't based on the statute's text. The Communications Act provided that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person." The only source for FDR's national-security exception was the same as the one now presented as a defense of the NSA surveillance program: the president's inherent constitutional authority, as commander in chief of the armed forces, to conduct surveillance as an incident to the military's defense of our nation.

Despite FDR's readiness to use his inherent authority, he and Jackson pushed Congress to give the administration statutory authority. As Jackson recounted in his memoir, the administration sought authorization for surveillance for not only "espionage [and] sabotage," but also "extortion and kidnapping cases." The House was willing only to authorize FBI wiretapping "in the interest of national defense." As today, any such legislation was opposed by the ACLU, as well as (in Jackson's words) "others of liberal persuasion."

FDR and Jackson also opposed those who sought to require that surveillance be approved not only by the attorney general but also by the courts, through warrant requirements. As Jackson wrote in a March 19, 1941 letter to Rep. Hatton Summers, "I do not favor the search warrant procedure.... Such procedure means loss of precious time, probably publicity, and filing of charges against persons as a basis for wire tapping before investigation is complete which might easily result in great injury to such persons."

In the end, FDR and the Congress weren't able to agree on a legislative compromise. Nonetheless, President Roosevelt continued to authorize national-security surveillance. All of this predated America's entry into the Second World War.


AFTER CHOOSING TO AUTHORIZE SURVEILLANCE, President Roosevelt faced angry legislators (similar to Senator Specter and others today) who called for disclosure of the surveillance program's details in order to inform the legislative debate. FDR decided that Congress was not entitled to, and could not be trusted with, such information. He thus refused to comply.

Attorney General Jackson spelled this out in an April 30, 1941 letter to Rep. Carl Vinson, Chairman of the House Committee on Naval Affairs. Jackson reviewed the history of presidential refusals to disclose national security information, beginning with President Washington's 1796 refusal to disclose the details of treaty negotiations. Jackson warned that to provide such information to Congress would enable congressional personnel to leak details to the public, thereby tipping off targets and embarrassing informants. He said that disclosure would "prejudice the national defense and be of aid and comfort to the very subversive elements against which you wish to protect the country." And despite the fact that Congress was attempting to pass legislation pertaining to that very program, Jackson concluded that information regarding the surveillance "can be of little, if any, value in connection with the framing of legislation or the performance of any other constitutional duty of the Congress."

Jackson recognized that the president and Congress face different responsibilities, making agreement between the two branches difficult on such weighty, heated, time-sensitive issues. The Constitution gives the president the responsibility to act quickly and decisively to defend the national security. Congress, freed from such responsibility, could indulge other preoccupations. At one point, Jackson wrote Rep. John Coffee that "I am confident that if you and any of the other liberals in Congress sat in my seat and were held to some degree of responsibility for the perpetration of acts of sabotage and espionage in this country you would feel differently about the wire tapping bill."


AND SO IT GOES TODAY. In the coming weeks, Senator Specter and others may threaten to withhold funds from the NSA or block nominations (such as General Hayden's nomination to head the CIA). The prerogatives of spending cuts and nominations blocks are within the power of the Congress, just as defense of the national security is committed to the president. President Bush can only hope that cooler heads prevail among House and Senate majorities. But in pursuing his own course of action, President Bush should keep in mind -- and cite as justification -- the example of the opposition party's greatest hero, President Roosevelt.

[Ogie Oglethorpe]

And then there was Truman circa 1946 where he expanded even the FDR wiretapping program during peace times.

Unlike Sen. Russell Feingold, the Wisconsin Democrat seeking to censure President Bush for ordering the interception of communications in and out of the United States involving persons with suspected links to al-Qaeda, Democratic President Franklin Roosevelt had no qualms about warrantless eavesdropping to protect the United States against attack.

Neither did Harry Truman.

There is a difference, however, between the eavesdropping Roosevelt and Truman authorized and the eavesdropping Bush is doing. Roosevelt and Truman did it in peacetime without congressional authorization. Bush is doing it during a war that Feingold voted on Sept. 14, 2001, to authorize.

Nonetheless, Roosevelt and Truman acted within their constitutional authority to defend the nation against attack. They were doing their duty, as is President Bush.

But in the Senate on Monday, while introducing his censure resolution, Feingold said, "The president's claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless."

FDR could not have agreed. On May 21, 1940, the United States was at peace, but Roosevelt wasn't taking chances. "It is too late to do anything about it after sabotage, assassination and 'fifth column' activities are completed," Roosevelt wrote Attorney General Robert Jackson in a memorandum cited by Senate Intelligence Chairman Pat Roberts in a letter he sent last month to Senate Judiciary Chairman Arlen Specter. "You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens." (Emphasis added.)

Truman went further. Testifying before the Church Committee on Oct. 29, 1975, Attorney General Edward Levi quoted a letter that Attorney General Tom Clark sent Truman in 1946. Clark wanted to continue FDR's program. Warrantless eavesdropping, he argued, was needed "in cases vitally affecting the domestic security, or where human life is in jeopardy."

In his letter to Specter, Roberts notes that "Truman broadened the scope of the authorization by removing the caveat that such surveillance should be limited 'insofar as possible to aliens.'"

Federal appeals courts have upheld the authority Roosevelt and Truman used. "(B)ecause of the president's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm ... that the president may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence," the U.S. Court of Appeals for the Fifth Circuit ruled in the 1973 case of United States v. Brown.

[Ogie Oglethorpe]

** The arguement follows that the president is commander and chief of all foreces of war including as court opinion bears out repeatedly those required to divine intelligence in order to thwart plans that would cause national harm. If anything the legislative has grabbed powers (from another branch of the governement as opposed to the people at large where they normally do) where they never had them before.

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

You'll notice the first paragraph does not in anyway give any credence to the house or senate having any say in the dispostion and use of those forces the president is entrusted as commander in chief. In the second paragraph the overlapping occurrs as the senate is entrusted with ratifying treaties and the like.

Clearly the courts in times past have considered intel gathering particularly on foreign agents and actors as part and parcel of commander in chiefs sphere of control.

Now lets look at the powers of the legislative to see if there is any legitamate claim for the legislative to hinder the executive in these matters.

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

Nope

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

Nope simply means to fund armed forces and declare states of war. Although one could argue the rules regarding capture might have some bearing on Gitmo cases etc.

To make rules for the government and regulation of the land and naval forces;

This is the closest langauge the legislative has for a legitamate constitutional calim for them injecting themselves into procedures dealing with the surveillance of foreign actors/agents. I think personally it is a huge stretch as this has commonly been understood to be the basis for establishing the UCMJ more so than the regulation on the use and dispositionof forces.

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Nope nothing in these last powers.

[Dinner]

No wonder Oggie didn't provide a link and tried to hide his source. It is the American Spectator which is a hard, hard rightwing publication with a tradition of telling half truths and spin.

That Oggie can whine about the main stream media or the Guardian being biased and then offer up garbage like the American Spectator is beyond me. Just look at the advertisements on the right side of the screen. They don't even try to pretend that they're balanced or honest.

http://www.spectator.org/dsp_article.asp?art_id=9790

[Ogie Oglethorpe]

And the source means what to the fact that FDR and Truman authorized these programs in times of peace in what regard?


Funny but there wasn't a lot of internet traffic back in the 40's to choose from.

[NeOmega]

All that surveillance and wiretapping, and FDR missed a Japanese fleet gunning for Pearl Harbor.

He did manage to get a bunch of japanese in internment camps fast, however.

oh and....

war that Feingold voted on Sept. 14, 2001, to authorize.

Bullspit. War powers act did not give Bush carte blanche to categorically data mine all American phone calls. I suppose Feingold voted to allow Bush to lock up all arabs as well, if Bush saw fit, or ban all private weapons.... because hey, we can't let the terrorists have guns can we? And congress voted Sept 14, 2001, to make Bush Supreme Leader and dictator until cessation of hostilities with the terrorists.

And what right wing blog did you find this at, anyways, townhall.com or blogsforbush.com or freerepublic.com or some little tiny right wing noise machine?

[Dinner]

It matters because you are going to need to present a creditable source that your claims did happen as you have previously claimed. The well known problem with the American Spectator is that they are like Rush Limbaugh in that the are so intensely partisan that they will omit facts which they don't like, they will twist facts to make them appear to be something else, and they will even out right lie. Absolutely nothing printed in the American Spectator can be taken as real unless it is backed up by a real journalist or academic source.

It's basically Provda for the Republican Party. But you know this; that's why you tried to hide the source.

[NeOmega]

Originally posted by Ogie Oglethorpe
Clearly the courts in times past have considered intel gathering particularly on foreign agents and actors as part and parcel of commander in chiefs sphere of control.

FISA is legal

FISA is constitutional

because FISA requires judicial oversight


And the NSA program is doing more than just spying on foreign calls, it is data mining and trackign all calls that go into the AT&T switching board in San Fransisco, foreign or domestic. They aren't just tracking foreign calls.

[Dinner]

What Oggie keeps ignoring is that in 1978 Congress and the President changed the law in order to prevent past abuses from occuring again. Bush knows the law was changed, he knows he is breaking the law, and that is why he keeps coming up with examples from the pre-FISA days. He's simply trying to distract people from a clear fact. FISA is now in place and warrentless wire taps or even monitoring is a complete and total breach of the law. The courts keep on saying the same thing over and over again. This isn't going to change.

[Ogie Oglethorpe]

Originally posted by Oerdin
What Oggie keeps ignoring is that in 1978 Congress and the President changed the law in order to prevent past abuses from occuring again. Bush knows the law was changed, he knows he is breaking the law, and that is why he keeps coming up with examples from the pre-FISA days. He's simply trying to distract people from a clear fact. FISA is now in place and warrentless wire taps or even monitoring is a complete and total breach of the law. The courts keep on saying the same thing over and over again. This isn't going to change.

a) I haven't ignored the 1978 statute. In fact I think it unconstitutional at worst and likely complied with at best. Namely the interception of communiques outside the borders of the US proper where FISA hold no sway. But that would have to be revealed as a classified operational detail that should not be revealed IMO.

b) The context of these examples was evidence to show the executive is far more diminished in its power to gain foreign intelligence than administration in times past. (administrations that were heroic figure s of the Democratic party no less)

[Ogie Oglethorpe]

Originally posted by NeOmega

And the NSA program is doing more than just spying on foreign calls, it is data mining and trackign all calls that go into the AT&T switching board in San Fransisco, foreign or domestic. They aren't just tracking foreign calls.

Different program and one that is legal in any event.